Gujarat High Court
Khumabhai Hirabhai Rabari vs State Of Gujarat on 23 July, 2021
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
R/CR.MA/32575/2016 JUDGMENT DATED: 23/07/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 32575 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
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1 Whether Reporters of Local Papers may be allowed to see the No
judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the judgment No
?
4 Whether this case involves a substantial question of law as to the No
interpretation of the Constitution of India or any order made
thereunder ?
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KHUMABHAI HIRABHAI RABARI & 4 other(s)
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR JIGAR G GADHAVI(5613) for the Applicant(s) No. 1,2,3,4,5
MR HN BRAHMBHATT(200) for the Respondent(s) No. 2
MS MOXA THAKKAR ADDITIONAL PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 23/07/2021
ORAL JUDGMENT
1. Heard learned Advocate Shri Jigar Gadhvi for the applicants, learned APP Ms. Moxa Thakkar for the respondent- State and learned Advocate Shri H.N. Brahmbhatt for the respondent No.2- original complainant. Page 1 of 12 Downloaded on : Sun Jan 16 02:06:20 IST 2022
R/CR.MA/32575/2016 JUDGMENT DATED: 23/07/2021
2. Rule. Learned APP Ms. Moxa Thakkar waives service of Rule on behalf of respondent no.1- State and learned Advocate Shri H.N. Brahmbhatt waives service of Rule on behalf of the respondent No.2- original complainant.
3. By way of present application, the applicants have prayed for quashing of the FIR being C.R. No. 1- 150 of 2016 registered with Amirgadh Police Station, District: Banaskantha dated 26.11.2016 for the offences punishable under Sections 143, 147, 148, 149, 323, 504, 506(2) of the Indian Penal Code, Sections 3(1)(r) and 3(2)(V) of the Scheduled Castes and Scheduled Tribes ( Prevention of Atrocities) Act (hereinafter referred to as the 'Atrocities Act').
4. The impugned complaint filed by respondent No.2 herein inter alia alleges that the complainant resides at Village Kapasiya, Taluka: Amirgadh, District: Banaskantha and is a farmer by profession and that he has 4 sons, who are married and whereas at present 2 sons have left village for the purpose of employment. He is living with his wife and other 2 sons. It is alleged that on 24.11.2016 at around 11.00 p.m. when the complainant after having dinner had slept along with his wife and children, at that time the present applicants had come in front of his house and started abusing the complainant with caste related abuses and asking him to leave the land Page 2 of 12 Downloaded on : Sun Jan 16 02:06:20 IST 2022 R/CR.MA/32575/2016 JUDGMENT DATED: 23/07/2021 failing which the complainant and his family members would be killed. It is alleged that at that time, the respondent No.2 had requested the applicants with folded hands to leave and he further requested them that he would call "panch" in the morning, who would do justice. It is alleged that upon being told the same, the applicants had got excited and started abusing the respondent No.2 and had further used caste related abuses and had threatened the complainant that his mother and sisters would be burnt alive and that his family members would be killed. It is further alleged that the applicant No.1 was armed with stick, the applicant No. 2 was armed with iron pipe, the applicant No.3 armed with axe and the applicant No. 4 was armed with iron pipe and whereas the applicant Nos. 3 and 4 allegedly pulled the complainant by his shirt, whereupon the complainant had fallen down and on account, which complainant had started shouting and screaming at which time wife and sons of the complainant attempted to intervene and save the complainant at which time son of the complainant had been assaulted by the applicant No. 5 with iron pipe on his wrist and whereas at which time sons of the complainant and his family members had started screaming and shouting. The applicants had thereafter left the place while allegedly administering threats that the complainant should vacate the land within 2 days or else they would be killed. It is further stated in the complaint that since the complainant had called the village Panchas for settling the matter, but since the matter could not be settled, therefore, he Page 3 of 12 Downloaded on : Sun Jan 16 02:06:20 IST 2022 R/CR.MA/32575/2016 JUDGMENT DATED: 23/07/2021 has filed the complaint on 26.11.2016.
5. Learned Advocate Shri Jigar Gadhavi for the applicants has submitted that no incident as alleged had actually happened and whereas the applicants and the complainant had disputed which had been agitated before the Revenue Authorities and whereas the applicants had succeeded in the said proceeding and therefore, the complaint was nothing but an armed twisting exercise with the intention to pressurize the applicants to settle the disputes. He has further submitted that the incident had happened at 11.00 p.m. at agricultural field and therefore, it does not fulfill the essential ingredients of Section 3(1) (r) of the Atrocities Act, i.e. of the incident having happened within the public view. Learned Advocate has further submitted with regard to an offence punishable under Section 506(2) of Indian Penal Code that the complainant had not felt threatened or intimidated since the complaint itself was filed after 2 days of the incident. He further submits that there is nothing in the complaint to indicate that the complainant was alarmed by threats in question. Learend Advocate has further submitted that while the allegation is that the applicants had come with armed stick, iron pipes, axe yet except the applicant no. 5, no one said to have used any of the weapons which by itself is highly improbabale. He further submits that while incident had happened on 24.11.2016, in the complaint itself, it is clearly stated that the complaint is filed after two days Page 4 of 12 Downloaded on : Sun Jan 16 02:06:20 IST 2022 R/CR.MA/32575/2016 JUDGMENT DATED: 23/07/2021 and therefore, can be considered the same the FIR was false, frivolous and vexatious. Thus, submitting, learned Advocate had requested this Court to quash present impugned complaint.
6. Learned Advocate Shri Gadhavi has in support of this contention relied upon the decisions of Hitesh Verma vs. State of Uttarakhand and Anr. reported in (2020) 10 Supreme Court Cases 710, Gorige Pentaiah vs. State of Andhra Pradesh & Ors. reported in (2008) 12 Supreme Court cases 531 and also the decision of this Court (I) in the case of Dhiren Prafulabhai Shah vs. State of Gujarat reported in 2016 (4) GLR 2785 (2) in the case of DineshBhai @ Mukeshbhai Jitabhai Patel vs. State of Gujarat decided in Special Criminal Application No. 4481 of 2014 and ( 3) in case of Lagdhirbhai Laxmanbhai Rabari ( Desai) vs. State of Gujarat reported in 2020(2) GLR 1102.
7. On the other hand, learned Advocate Shri H.M. Brahmbhatt for the respondent No. 2 - original complainant has submitted that a bare perusal of the complaint reveals that a cognizable offence has taken place. That the complainant and his family members were abused using caste related abuses, son of the complainant and the complainant had been assaulted and threats including threats to life had been administered to the complainant and his family members and hence, he submits that this Court may not interfere Page 5 of 12 Downloaded on : Sun Jan 16 02:06:20 IST 2022 R/CR.MA/32575/2016 JUDGMENT DATED: 23/07/2021 with the impugned complaint. He further submits that the incident in question had been happened outside the house of the complainant in the agricultural field, therefore, requirement of Section 3(1)(r) of the Atrocities Act stands fulfilled. He further submits the requirement of mentioning the caste of the complainant and of the applicants knowing that the complainant belongs to said caste etc. is now no more relevant requirement in view of the decision of the Supreme Court in the case of Ashabai Machindra Adhagale vs. State of Maharashtra and Ors. reported in (2009) 3 SCC 789. He further submits that the fact of the complainant having waited for 2 days for settlement would not be fatal to the complaint, more particularly, when issue is considered in context of other averments made in the complaint inasmuch as in the complainant has stated that when the applicants had come to the house of the complainant and had started abusing the complainant and his family members, at that time, firstly the complainant had requested the applicants to leave place and that next day morning, they would call the village Panchas, who would take appropriate decision. That the issue of settlement also would not be fatal to the complaint since in the statement after the incident, complainant had stated that he tried to settle the issue through the village Panchas but since settlement did not take place, therefore, he had filed complaint. Learned Advocate submitted that the issue of settlement ought not be taken in negative context and whereas the complainant had failed in resolving the Page 6 of 12 Downloaded on : Sun Jan 16 02:06:20 IST 2022 R/CR.MA/32575/2016 JUDGMENT DATED: 23/07/2021 dispute through the Village Panchas therefore, there was delay in filing the complaint. According to the learned Advocate Shri Shah by making such an averment, the complainant had explained the delay in filing the complaint and nothing more may be read into the same. Learned Advocate for the complainant relied upon the decision of Supreme Court in the case of Dineshbhai Chandbhai Patel vs. State of Gujarat reported in AIR 2018 SC 31254, decision in the case of Kamal Shivaji Pokarnekar vs. The State of Maharashtr, reported in 2019 (14) SC 350 and the decision of the Supreme Court in the case of Md. Allauddn Khan vs. State of Bhhar and Ors. Reported in AIR 2019 SC 1910. Learned Advocate, therefore, submits that this Court may not interfere with the impugned complaint.
8. Learned APP Ms. Moxa Thakkar for the respondent State has submitted a report of the Investigating Officer dated 05.01.2021 and by replying upon the same, she has contended that prima facie the incident in question appears to have happened, though majority of witnesses, who have seen the incident and have recorded their statements, appear to be from the family of the complainant, but from the report, it also appears that there are other two witnesses, who had seen the incident. She further submits that injured persons had been taken to the Community Health Center at Amirgadh and had been given treatment for the injuries suffered by them in the assault. She further submits that since cognizable offence have been Page 7 of 12 Downloaded on : Sun Jan 16 02:06:20 IST 2022 R/CR.MA/32575/2016 JUDGMENT DATED: 23/07/2021 alleged in the complaint and since the report shows that prima facie incident has happened, therefore, this Court may not quash the complaint at this stage and whereas after the investigation is over and charge-sheet is filed, if there is no material found against the applicants, then it is always open to the applicants to approach appropriate Court praying for being discharged from the alleged offences. Thus submitting learned APP had requested this Court to reject the present applicants.
9. Learned Advocates for the parties have not submitted anything further.
10. At the outset, it is required to be mentioned that the impugned complaint alleges offences punishable under the Scheduled Castes and Scheduled Tribes ( Prevention of Atrocities) Act as well as under the Indian Penal Code. As far as offences under the Atrocities Act are concerned, the case of the applicants appears to be covered by decision of the Hon'ble Apex Court in case of Gorige Pentaiah vs. State of Andhra Pradesh & Ors. reported in 2008(12) SCC 531. The Hon'ble Supreme Court while considering a complaint where allegations were of intentionally insulting or intimidating a member of Scheduled Caste or Scheduled Tribe with an intent to humiliate him, has inter alia held that according to the basic ingredients of Section 3(1) (x) of the Act, the complainant ought to have Page 8 of 12 Downloaded on : Sun Jan 16 02:06:20 IST 2022 R/CR.MA/32575/2016 JUDGMENT DATED: 23/07/2021 stated that the accused-appellant was not a member of a Scheduled Caste or Scheduled Tribe and he i.e. complainant was intentionally insulted or intimidated by the accused with an intent to humiliate in a place within the public view. According to the Hon'ble Apex Court since it was not mentioned in the complaint that the accused was not a member of the Scheduled Caste or Scheduled Tribe and that accused had intentionally insulted or intimidated the complainant with an intent to humiliate the complainant in a place within the public view therefore the basic ingredients of the offence were missing in the complaint and under such circumstances such a complaint could not be permitted to continue. In the instant case also, this Court finds that the complainant had not stated the above ingredients in the complaint and therefore the decision of the Hon'ble Supreme Court referred to hereinabove would be squarely applicable.
11. While this may be the position insofar as the allegation under the Atrocities Act is concerned, the position changes as regards the offence under the Indian Penal Code are concerned, it appears, more particularly from the report which was submitted to this Court by the Investigating Officer and which was not supplied to the learned Advocate for the applicants since the investigation was not complete, it is revealed that after the alleged assault, the complainant and his family members had taken treatment from the Community Health Center at Amirgadh, as regards Page 9 of 12 Downloaded on : Sun Jan 16 02:06:20 IST 2022 R/CR.MA/32575/2016 JUDGMENT DATED: 23/07/2021 injury sustained by them on account of the assault. It further appears that the Investigating Officer, before this Court had granted interim relief in favour of the applicants had taken statement of few persons, and whereas while some of the statements are of the family members of the complainant himself but the fact remains that the allegations of assault is confirmed by the witnesses to the assault. Thus apart from the fact that the complainant very specifically in the impugned complaint mentions about the assault and threats administered by the accused, the same is also prima facie substantiated by the statements of witnesses. Under such circumstances, in the considered opinion of this Court there is sufficient material at the stage to permit the investigation to be carried out further as regards the allegation against the applicants under the Indian Penal Code.
15. Learned Advocate for the applicants has also contended that the applicants did not feel threat or alarm on account of threats administered by the accused and therefore, the learned Advocate has relied upon the decisions in the cases of Dineshbhai @ Mukeshbhai Jitabhai Patel ( Supra) and Lagdhirbhai Laxmanbhai Rabari ( Desai) (supra) to canvass this point. The Court in the case of Dineshbhai (Supra) has inter alia held that "before an offence of criminal intimidation is made out, it must be established that an accused had an intention to cause alarm to the complainant. Mere threats given by the accused not with an intention to cause alarm to the Page 10 of 12 Downloaded on : Sun Jan 16 02:06:20 IST 2022 R/CR.MA/32575/2016 JUDGMENT DATED: 23/07/2021 complainant, but with the view to deterrign him from interfering with the work of construction of the wall, which was undertaken by the accused- applicant would not constitute an offence of criminal intimidation."
16. Now coming to the facts of the case the applicants had come with armed/weapons described hereinabove to the house of the complainant, abused the complainant, assaulted the complainant and his family members, which required them to take treatment from the hospital and while leaving, the accused had threatened that if the complainant and his family members did not vacate the property/land within 2 days then they would be killed. This Court finds that the essential ingredients for the offence under Sections 504 and 506 clearly appears to be made out, more particularly, since the applicants having come to the house of the complainant and having assaulted the complainant and his family members, would enough material to show that the intention was undoubtedly to intimidate the complainant. On the other hand, merely because the complainant had filed the complaint after 2 days of the incident, it would not be presumed that the complainant did not fulfill sufficient threats or alarm since he could wait for 2 days before filing of the complaint.
17. As noted hereinabove, the reasons for delay of 2 days is specifically mentioned in the complaint itself and whereas in the opinion of this Court, Page 11 of 12 Downloaded on : Sun Jan 16 02:06:20 IST 2022 R/CR.MA/32575/2016 JUDGMENT DATED: 23/07/2021 such delay, more particularly, due to the reasons mentioned for the delay i.e. waiting for the village panchas to arrive at an amicable settlement, would not be fatal to the complaint itself.
18. In view of the discussions, observations and findings hereinabove, present application is allowed in part. The impugned FIR being C.R. No. I- 150 of 2016 registered with Amirgadh Police Station, District: Banaskantha on 26.11.2016, is quashed insofar as Sections 3(1)(r) and 3(2)(5) of the Scheduled Castes and Schedule Tribes ( Prevention of Atrocities ) Act whereas the present application is rejected insofar as the offence under the Indian Penal Code are concerned. Rule is made absolute to the above extent.
(NIKHIL S. KARIEL,J) NIRU Page 12 of 12 Downloaded on : Sun Jan 16 02:06:20 IST 2022